Telecommunications and IT – ARBloghttps://www.hlarbitrationlaw.com
International Arbitration News, Trends and CasesThu, 14 Feb 2019 13:48:03 +0000en-UShourly1https://wordpress.org/?v=4.9.9CPR Appoints New Cyber Panel Ahead of Anticipated Increase in Data Security Disputeshttps://www.hlarbitrationlaw.com/2017/08/cpr-appoints-new-cyber-panel-ahead-of-anticipated-increase-in-data-security-disputes/
https://www.hlarbitrationlaw.com/2017/08/cpr-appoints-new-cyber-panel-ahead-of-anticipated-increase-in-data-security-disputes/#respondWed, 16 Aug 2017 15:56:32 +0000http://www.hlarbitrationlaw.com/?p=1734The International Institute for Conflict Prevention and Resolution, a New York-based organisation offering Alternative Dispute Resolution (ADR) services, has recently announced the launch of a new specialised panel of neutrals, commissioned to deal with cybersecurity disputes. The Cyber Panel is composed of experts in cyber-related areas such as data breaches and subsequent insurance claims. In a press release, Noah Hanft, President of CPR, described the new panel as guiding the “critical effort” by businesses to “prevent and/or resolve cyber-related disputes in a manner that best protects operations, customers and reputation” due to attacks now occurring with increased frequency and sophistication.

CPR’s decision to establish a specialist cyber panel addresses a perceived need for arbitrators and mediators with relevant expertise, given that data protection and security breaches are regarded as an increasingly common cause of technology, media, and telecommunications (TMT) disputes, and therefore a significant growth area for commercial dispute resolution. According to the 2016 International Dispute Resolution survey on TMT disputes conducted by the School of International Arbitration at Queen Mary University of London, respondents predicted a 191% increase in disputes related to data/system security breaches, the largest growth area identified by the survey. Despite the fact that only 9% of respondents had encountered such disputes over the last five years, 79% of respondents thought that they were either likely or very likely to arise over the next five years. The survey also suggested that data breaches are most often caused by employee action, followed by malicious third party attacks, with both being more common than breaches caused by system failures.

Given the significant reputational and financial damage that can result from a data security breach, it is crucial to resolve subsequent disputes through the use of a reliable procedure which is tailored to the wider commercial context. This is why TMT companies are increasingly often turning to international arbitration which, as the survey shows, was respondents’ preferred mechanism for resolving disputes in the sector. Compared to the 43% of respondents who expressed a preference for arbitration, only 15% chose court litigation as their most favoured option. However, at present, litigation remains the most used mechanism in practice, used in relation to 44% of TMT disputes over the last five years. In that regard, the authors of the survey add that many of these disputes arise from contracts which were concluded long before arbitration grew in popularity and consequently, they do not include an arbitration clause. If this is true, we are likely to witness a significant increase in the number of TMT arbitrations. Indeed, 82% of respondents believed that there was likely to be a general increase in TMT arbitrations.

In general, the survey suggests that TMT companies may require more confidence in international arbitration in order to make this theoretical preference a reality. One way in which this could be addressed is by increasing the number of arbitrators with specialist knowledge of the sector and the specific issues in dispute. This approach appears to correspond with the views of the respondents to the Queen Mary University of London survey, which identified the technical expertise of the decision maker as an important aspect when deciding on a dispute resolution mechanism, as well as decision makers. In light of this conclusion, it was a logical step for CPR, which already has a series of specialist panels in other areas, to appoint a specialised Cyber Panel which may appeal to parties faced with disputes relating from data security breaches. More generally, there seems to be a wide consensus that cybersecurity-related arbitration is going to be an area of future growth.

]]>https://www.hlarbitrationlaw.com/2017/08/cpr-appoints-new-cyber-panel-ahead-of-anticipated-increase-in-data-security-disputes/feed/0Astro v First Media – lessons learnedhttps://www.hlarbitrationlaw.com/2015/03/astro-v-first-media-lessons-learned/
https://www.hlarbitrationlaw.com/2015/03/astro-v-first-media-lessons-learned/#respondMon, 30 Mar 2015 09:05:31 +0000http://www.hlarbitrationlaw.com/?p=1368The latest development in the dispute over a failed joint venture between Astro, a Malaysian media group (“Astro“), and companies which are part of the Indonesian giant Lippo, including PT First Media TBK (“First Media“) (Astro Nusantara International B.V. and others v PT First Media TBK and others, HCCT 45/2010), saw the Hong Kong High Court allowing enforcement of arbitral awards made in favour of Astro, despite the Singapore Court of Appeal’s (“Singapore CA“) ruling in October 2013 refusing enforcement.

Case Summary

The arbitration proceedings commenced at SIAC in 2008, during which Astro were successful in joining to the arbitration a number of Astro companies that were not parties to the arbitration agreement (“Additional Parties“). Between 2009 and 2010, the tribunal made a number of awards, totalling a monetary award exceeding US$130 million primarily in favour of the Additional Parties (the “Awards“).

Astro sought enforcement of the Awards in various jurisdictions, including Singapore and Hong Kong. When the Awards were initially recognized by the Hong Kong court in 2010, First Media did not resist the enforcement proceedings, because it believed it did not have assets in the jurisdiction. However, subsequently Astro obtained a garnishee order in Hong Kong against a debt of US$44 million due to First Media. First Media therefore sought to set aside the garnishee order and judgment.

The application was made some 14 months out of time. It was heard in early 2015 following the judgment of the Singapore CA in October 2013 that the tribunal had improperly exercised its power to join the Additional Parties and therefore lacked jurisdiction to award sums to the Additional Parties (the “Jurisdictional Issue“).

Mr Justice A Chow of the High Court gave his judgement on 17 February 2015, refusing to allow an extension of time on the following grounds:

(a) serious delay –14 months late as opposed to the 14-day deadline under Order 73 of the Rules of the High Court (“RHC“);
(b) lack of good faith; and
(c) the Awards have not been set aside and therefore were still valid and created legally binding obligations.

The Court considered it had a discretion to allow enforcement even if a ground for refusal might otherwise be made out, in circumstances where there has been a breach of good faith. Referring to previous decisions of the Hong Kong courts including Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111, the learned judge considered that this was a breach of good faith on the part of First Media, and that the 14-month delay was the result of a “deliberate and calculated decision not to take action in Hong Kong”.

The Hong Kong judgment has attracted some comment not least because it did not follow the decision of the Singapore Court to refuse enforcement. In this respect it was noted that the award had not been set aside in Singapore.

Conclusion – lessons learned

The writers believe the Hong Kong judgment confirms the “pro-enforcement”/ “non-interference” approach generally adopted by Hong Kong courts towards enforcement. Further, parties should bear in mind the following “lessons learned” from the decision:

1. the time limit for challenge of enforcement of an award under the RHC or the Arbitration Ordinance should be strictly adhered to; and
2. the Court will apply the principle of good faith in proceedings brought to resist enforcement, taking into account the conduct of the parties throughout the proceedings.

The learned judge himself anticipated that the matter would go to a higher court, and if so, it remains to be seen whether this decision will be upheld.

]]>https://www.hlarbitrationlaw.com/2015/03/astro-v-first-media-lessons-learned/feed/0Welcome to the Hogan Lovells ARBloghttps://www.hlarbitrationlaw.com/2013/05/welcome-to-the-hogan-lovells-arblog/
https://www.hlarbitrationlaw.com/2013/05/welcome-to-the-hogan-lovells-arblog/#respondMon, 20 May 2013 08:01:12 +0000http://www.hlarbitrationlaw.com/?p=287We are excited to introduce this blog dedicated to reporting on developments in the world of international arbitration. Hogan Lovells has one of the largest global arbitration practices with presence in over 40 offices in 22 jurisdictions with extensive experience in high-value international disputes.

Our arbitration blog brings together our expertise from across the globe to provide you with the latest news and views on developments in the world of international arbitration. The blogs will focus on the most recent and topical developments, in a commercially useful and easily-digestible form. Each blog will be tagged so that you can easily search for the sectors or issues that you are particularly interested in.

If you would like to sign up by email the latest postings will be delivered direct to your inbox. We do hope that you find our blog useful and interesting and any questions or feedback are very welcome of course, so please do get in touch by emailing the blog team.

Dan Gonzalez and Simon Nesbitt, co-heads of International Arbitration
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